James (Migration)

[2022] AATA 4646

James (Migration) [2022] AATA 4646 (2 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mitchell Joseph James

REPRESENTATIVE:  Mr Prabhjot Singh Sandhu (MARN: 0963599)

CASE NUMBER:  2208351

HOME AFFAIRS REFERENCE(S):          BCC2020/1560044

MEMBER:Peter Papadopoulos

DATE:2 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 02 December 2022 at 1:06pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – further stay in Australia extending over 12 months – exceptional circumstances – impact of the COVID-19 pandemic – pandemic-related restrictions no longer apply – no other health-related reason – visa refusal on immigration record – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 137L
Migration Regulations 1994, Schedule 2, cl 600.215

CASES

An v Minister for Immigration and Citizenship [2007] FCAFC 97
Hatcher v Cohn [2004] FCA 1548
Oreb v Wilcox (2004) FCA 1520
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918         

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 May 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).

2. The visa applicant applied for the visa on 15 May 2020. At the time the visa application was lodged, Class FA contained one visa subclass, the subclass 600 (Visitor) visa (“subclass 600 visa”) which had a number of different streams. In this case, the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.215:

   600.215
   (1) If subclause (2) applies—exceptional circumstances exist for the grant of the visa.
   (2) This subclause applies if the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the following visas for a total period of more than 12 consecutive months:

   (a) one or more visitor visas;
   (b) a Subclass 417 (Working Holiday) visa;
   (c) a Subclass 462 (Work and Holiday) visa;
   (d) a bridging visa.

   Evidence before the Department

4. The applicant is a 5 year old male from the United Kingdom (“UK”). Department records indicate that he first arrived in Australia on 20 February 2020 on a subclass 601 Electronic Travel Authority visa which permitted him to remain in Australia for three months after entry.

5. He applied for a subclass 600 visitor visa on 15 May 2020 seeking to remain in Australia until 15 November 2020. The applicant was represented in relation to their visa application by Mr Prabhjot Singh Sandhu (MARN 0963599).

6. In a section of the visa application form entitled “Further stay”, the applicant was provided with the following guidance:

   If the request for further stay will result in the applicant being authorised to stay in Australia for more than 12 months on certain visitor, working holiday and bridging visas, they must demonstrate that they have exceptional reasons for the further stay. Provide all details.

7. Beneath that guidance note, the applicant provided the following details in relation to their reason for further stay in Australia:

   Due to Corona virus, UK is completely locked down, No flights are flying. We need to stay in best public health.

8. Documents submitted in support of the application included an undated and unsigned statement specifying that he and his family were stuck in Australia due to the complete COVID-19 lockdown in the UK and that they were unable to leave Australia due to flight restrictions and intended to remain in Australia until the COVID-19 situation had eased.

9. On 24 May 2022, the delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.215 because the delegate was not satisfied that exceptional circumstances existed for the grant of the visa.  

   Evidence before the Tribunal

10. On 8 June 2022, the applicant applied to the Tribunal for review of the Department’s decision to refuse to grant the visitor visa. The applicant was invited to appear before the Tribunal on 30 November 2022 to give evidence and present arguments. The Tribunal did not receive any further evidence or submissions prior to the hearing.

11. The applicant was represented in relation to the review by Mr Prabhjot Singh Sandhu (MARN 0963599).

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether cl 600.215 is met, which requires the Tribunal to determine whether the grant of the visitor visa will result in the applicant being authorised to stay in Australia for more than 12 consecutive months, and if so, whether exceptional circumstances exist for the grant of the visa.

    Would the grant of the visa result in the applicant being authorised to stay in Australia as the holder of one or more prescribed visas for a total period of more than 12 consecutive months?

13. Department records indicate that since he first arrived in Australia on 20 February 2020, he has not left Australia, and has therefore been in Australia for more than 12 consecutive months. Since arriving in Australia he has held a subclass 601 visa and a bridging visa. Both of these visas are prescribed in cl 600.215. The Tribunal finds that the grant of the subclass 600 visa to the applicant would result in the applicant being authorised to stay in Australia as the holder of one or more of the visas prescribed in cl 600.215 for a total period of more than 12 consecutive months.

    Do exceptional circumstances exist for the grant of the visa?

14. The legislation does not define exceptional circumstances.  The Tribunal is not aware of any specific relevant court authority on the meaning of “exceptional circumstances” in the context of cl.600.215. However, the meaning of exceptional circumstances has been considered in the context of other visa criteria.

15. In An v Minister for Immigration and Citizenship [2007] FCAFC 97 the majority of the Full Federal Court (per Emmett and Lindgren JJ) held that the word “exceptional” in the context of cl. 856.213 in Part 856 of Schedule 2 to the Regulations is a simple, non-technical phrase and should be understood as meaning unusual or atypical.

16. The meaning of “exceptional circumstances” in the context of section 137L of the Act was considered by Walters FM in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918. In particular, the court referred with approval to the following comments of Jacobson J in Oreb v Wilcox (2004) FCA 1520:

    The terms "exceptional circumstances" or "special circumstances" are gateways to the exercise of a discretion and are to be found in many statutes. They have been said to be elastic instructions and that all that is contemplated is for there to be something unusual or different to take the matter out of the ordinary (see Boscolo v Secretary, Department of Social Security[1999] FCA 106; (1999) 90 FCR 531 at 535-6).

17. Walters FM also referred to the following statements of Kiefel J in Hatcher v Cohn [2004] FCA 1548:

    Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances……The words “exceptional circumstances” may apply to a variety of circumstances, and no definition which limits their application, should be adopted, unless the limitation appears from the relevant statutory provision.

18. Department policy guides decision-makers to recognise exceptional circumstances according to their ordinary dictionary meaning which may include:

    ·an unanticipated change in an applicant's circumstances (or the circumstances of an Australian citizen or permanent resident) that are beyond the applicant's control and are extraordinary; or

    ·if an applicant is required to stay in Australia to provide assistance or support due to the death, serious illness or serious medical condition of a member of the applicant's close family in Australia.

19. The online Macquarie Dictionary[1] specifies the following definition for the word “exceptional”:

    adjective 1.  forming an exception or unusual instance; unusual; extraordinary.

    2.  extraordinarily good, as of a performance or product.

    3.  extraordinarily skilled, talented, or clever.

    –exceptionally, adverb
    

    [1] Macquarie Dictionary (online) – (accessed 29 November 2022)

    –exceptionalness, noun

20. Department policy also provides the following guidance in relation to expectations concerning the requirement for, and nature of, evidence to demonstrate exceptional circumstances in any given case: 

    Applicants are to provide supporting evidence of exceptional circumstances, for example documentary evidence from a medical practitioner outlining details of the family member's serious medical condition as well as the circumstances requiring the applicant to provide assistance.

21. At hearing, the Tribunal explained relevant aspects of the legislative framework and how the Tribunal was required to assess whether exceptional circumstances existed.  The Tribunal took evidence from the applicant’s parents by asking them to explain his circumstances and present arguments as to why these are “exceptional” such that they would warrant the grant of the subclass 600 visa in this case.

22. A range of matters were presented to the Tribunal for its consideration which can generally be characterised as constituting four sets of circumstances:

    ·     the impact of COVID-19 upon the applicant’s desire and ability to return to the UK

    ·     the desire to undertake further travel in Australia with his family

    ·     the desire to remain in Australia with her family because they prefer the lifestyle, climate and social environment here and that has particularly improved the mental health of one of her sisters

    ·     the desire to have the subclass 600 visa granted in order to reduce or eliminate the possibility of a bad immigration record which might adversely impact upon his prospects of success in connection with all future visa applications

23. I will now turn to my assessment of whether any or all of these four sets of circumstances, individually or cumulatively, amount to “exceptional circumstances” for the purposes of cl. 600.215.

    The impact of COVID-19 upon the applicant’s desire and ability to return to the UK

24. At hearing, the Tribunal noted the reasons given for further stay as specified on the visa application form, and indicated that those reasons had been provided some time ago and, in the absence of any additional argument or evidence, the Tribunal might find it difficult to accept that those reasons can now be regarded as exceptional circumstances such that they would now warrant the grant of the subclass 600 visa.  The Tribunal spoke to the applicant’s parents about the changes in the global Coronavirus pandemic situation and put the following information to them for their consideration and comment:

    The United Kingdom introduced various public health orders and economic measures to combat COVID-19. On 23 March 2020, the government authorised a nationwide lockdown only permitting people to leave their homes in certain circumstances. On 4 July 2020, the government began reducing restrictions by permitting certain venues to open and introducing the “1-metre-plus” rule. [2] On 1 November 2020, a second national lockdown went into effect, with the national experiencing a third national lockdown between January and March 2021. A “road-map” out of lockdown was put into place on 8 March 2021.[3] On 14 March 2022, the UK Government announced that they would be removing all international travel restrictions from 4am on 18 March 2022.[4]

    [2] The Guardian, ‘Covid chaos: how the UK handled the coronavirus’, dated 3 February 2021

    [3] UK Parliament, House of Commons Library, ‘Coronavirus: A history of English lockdown laws’, dated 22 December 2021

    [4] GOV.UK, ‘All COVID-19 travel restrictions removed in the UK’, dated 14 March 2022

25. The Tribunal did not receive any comment upon this information.  The Tribunal also expressed its concern that this information indicated that COVID-19 international travel restrictions such as border closures and limited flight availability have not been in existence for a considerable period of time prior to both the date of the delegate’s decision and the Tribunal hearing. The Tribunal then expressed its concern that this may lead the Tribunal to find that the reasons initially claimed do not amount to a set of exceptional circumstances.  The Tribunal did not receive any comment or response to this concern.

26. The whole world has been dealing with the issue of COVID-19 since early 2020. All governments including the British government have demonstrated that they have taken steps to safeguard the welfare of people from the effects of COVID-19, and that international airlines have also been taking steps to safeguard the safety of passengers on their flights. International travel restrictions, including restrictions upon inbound travel to the UK along with the limited availability of flights to the UK from Australia during the pandemic, no longer exist and no argument or evidence refuting this fact was presented to the Tribunal.

27. Therefore, given the change in pandemic conditions since the visa application was made such that the applicant and his family can freely return to the UK with no appreciable COVID-19 related risk to their health and well-being, the Tribunal does not accept that exceptional circumstances exist in that regard.

    The desire to undertake further travel in Australia with his family

28. The applicant’s parents stated at hearing that they would like the visa to be granted to the applicant in order to allow him additional time to undertake further travel in Australia with his family, particularly to Western Australia and the Northern Territory, unimpeded by COVID-19 related border restrictions within Australia.  The Tribunal was advised that the family had travelled to various parts of New South Wales and Queensland but was not given any reason why they had not travelled to Western Australia and the Northern Territory since lockdowns eased across Australia and border restrictions within Australia had been lifted some time ago.

29. The Tribunal appreciates that the applicant’s family may wish to undertake further travel in Australia but notes that they have had ample opportunity to do so since arriving in Australia, even allowing for the various lockdowns and travel restrictions within Australia during that period.  Taking into account the temporary nature of the visa to allow the applicant to undertake tourism within Australia, the Tribunal notes that the applicant and his family have remained in Australia for a period of almost three years and that this has allowed them more time than many other subclass 600 visa holders and applicants to pursue tourism-related activities within Australia. 

30. Therefore, while the Tribunal appreciates this desire to undertake further travel within Australia, taking into the family’s ability to do so when it was possible, the Tribunal does not regard this desire to now embark upon such travel to amount to exceptional circumstances within the meaning of cl. 600.215.

    The desire to remain in Australia with his family because they prefer the lifestyle, climate and social environment here and that has particularly improved the mental health of one of his sisters

31. It was put to the Tribunal at hearing that the applicant and his family wanted to remain in Australia and not return to the UK because they prefer the lifestyle, climate and social environment in Australia.  The applicant’s mother impressed upon the Tribunal that:

    ·     the family enjoyed a better lifestyle here in Australia than in the UK, particularly as they can enjoy the beach

    ·     the weather was better in Australia than in the UK

    ·     life is safer in Australia than in the UK because the children can “walk in the dark” in Australia and not be exposed to “gangs in the housing estates” that exist back in the UK

    ·     “everything back home is a nightmare” and that “if you want to go to the dentist it’s a three hour wait”

    ·     the applicant’s 12 year old sister had been a “nervous child” in the UK and had benefitted being in Australia as she was now “a lot calmer and a lot more at ease”.

32. The Tribunal appreciates the desire to remain in Australia for these reasons but these preferences are neither unusual nor extraordinary to warrant the grant of the subclass 600 visa. 

33. Specifically in relation to the desire to remain in Australia due to the improvement in his sister’s mental health, the Tribunal notes that no medical evidence was provided detailing the nature of her condition and whether that condition was serious and therefore required the applicant or any other family member to remain in Australia for a further period.  In the absence of such evidence and taking into account the evidence at hearing which indicated that his sister’s mental health condition was not serious, the Tribunal finds that his sister’s condition does not amount to an exceptional circumstance that would warrant the grant of the subclass 600 visa to the applicant.

34. Finally, taking into account the temporary nature of the visa, the Tribunal makes the observation that these preferences are more indicative a desire to remain in Australia on an ongoing basis rather than remain temporarily as a tourist. It is open to the applicant to pursue other visa options should they wish to realise such preferences.

35. Therefore, while the Tribunal appreciates the applicant’s desire to remain as was expressed at hearing, the Tribunal neither regards this desire, nor the circumstances which give rise to this desire, as amounting to exceptional circumstances within the meaning of cl. 600.215.

    The desire to have the subclass 600 visa granted in order to reduce or eliminate the possibility of a “bad immigration record” which might adversely impact upon his prospects of success in connection with all future visa applications

36. The applicant’s parents sought to argue that the visa should be granted so that the applicant would not have a visa refusal on their immigration record as they were apprehensive about that potentially having an adverse impact upon the applicant’s future visa prospects.  At the conclusion of the hearing, the applicant’s representative also advanced a submission that the family was concerned about having a “bad immigration record” because of the visa refusals and that his clients were “happy to go even if there is a one day visa to allow them to go”.  The representative also impressed upon the Tribunal that the applicant’s parents felt responsible for the children’s future predicament and feared that they had “ruined their chances to return to Australia”.

37. While the Tribunal accepts that the applicant’s parents are apprehensive in relation to this issue, it remains that it has always been a possibility for any Australian visa applicant to have their visa application refused where they do not meet a particular criterion and consequences may follow as a result of that visa refusal. The fact that potential adverse consequences might arise in such cases is not, in itself, an unusual or extraordinary circumstance.

1. In this particular case, the Tribunal notes that the applicant’s parents had the assistance of their representative before the Department and the Tribunal and presumes that the representative properly advised them of any potential adverse consequences in the event that any child’s visa application were refused. The Tribunal is not aware that the representative had failed to provide adequate advice about the potential impact of visa application refusal upon the prospects of success of future visa applications that might be made by the applicant. As was stated at hearing, it is not a matter for the Tribunal to advise about such risks. That said, the Tribunal notes that the matter of visa application refusal in the applicant’s case was ostensibly avoidable as it was open to her parents to withdraw the application at a point in time before the application was refused on 24 May 2022 when it became readily apparent that the prospects of approval had diminished once the pandemic restrictions had eased.

2. Therefore, while the Tribunal acknowledges the desire to avoid any potential adverse impact arising out of having an Australian visa application refused, any potential consequences or unfavourable circumstances arising out of visa application refusal in the applicant’s case do not amount to exceptional circumstances within the meaning of cl. 600.215.

   Concluding comments

3. The legislation is clear, as stated at cl.600.215 of the Regulations, that the visa can be granted if exceptional circumstances exist for the grant of the visa. However, taking into account all of the above sets of circumstances, individually and cumulatively as they apply to the applicant, the Tribunal is not persuaded that exceptional circumstances exist for the grant of the visa.

   DECISION

4. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

   Peter Papadopoulos
   Member